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A limited version of President Donald Trump’s Executive Order restricting travel and entry to the United States will take effect Thursday at 8 p.m. EDT.
Key Points:
BAL Analysis: While a limited version of Trump’s travel and entry restrictions is set to take effect Thursday night, those with close family, business or employment ties to the U.S., as outlined above, should be exempt. BAL has updated an FAQ that addresses who is affected by the Executive Order, who is exempt, and other questions businesses and employees might have regarding traveling to or out of the U.S. at this time. The FAQ is available here.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
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The Supreme Court on Monday ruled that parts of President Donald Trump’s revised travel ban may take effect, but carved out an important exemption for anyone with “a credible claim of a bona fide relationship” to a U.S. person or entity. The court will hear arguments in October on the legality of the Executive Order, but in the meantime questions are sure to arise over what it means to have “bona fide” ties to the U.S. BAL has drafted an FAQ that addresses who is affected by the Executive Order, who is exempt, and other questions businesses and employees might have regarding traveling to or out of the U.S. at this time. The FAQ is available here.
The Supreme Court on Monday ruled that parts of President Donald Trump’s revised travel ban may take effect, but carved out an important exemption for anyone with “a credible claim of a bona fide relationship” to a U.S. person or entity. The Court will hear arguments on the case in October.
Key points:
Background: The March 6 Order was signed after a broader Executive Order, issued in late January, stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial Executive Order. The second Executive Order has also been held up in the courts, however, and the Trump administration appealed to the Supreme Court earlier this month. The Court has now agreed to consider this case, but will not hear arguments until October, noting that the government did not ask for an expedited schedule. The order the Court issued Monday was unsigned. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, saying they would have lifted the injunctions entirely until the Supreme Court decides the case, and that they believed the government was likely to succeed on the merits of the case.
BAL Analysis: While it is not entirely clear how the Court’s ruling will be implemented, the exemption the Court provided for those with “bona fide” relationships with U.S. people or entities, as well as the list of examples the Court gave on who would be permitted continued entry to the U.S., suggests that those with legitimate travel needs for work or business will not be kept from traveling, pending a final ruling. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.
The Trump administration is expected to rescind the International Entrepreneur Rule, which was finalized just before President Obama left office and was slated to take effect July 17.
BAL Analysis: Recent reports indicate that the administration will likely delay or suspend implementation of the rule. BAL is closely monitoring the situation and will provide updates on significant developments.
President Donald Trump signed an Executive Order late Wednesday, scrapping an Obama-era goal of ensuring that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of the receipt of their application.
BAL Analysis: Wednesday’s Executive Order is another sign that new screening requirements could result in appointment backlogs and increased administrative processing delays for some visa applicants. The administration continues to review current vetting policies and may impose additional screening requirements in the weeks and months ahead.
President Donald Trump ordered new travel and trade restrictions with Cuba on Friday, but stopped short of rolling back all of the Obama administration’s efforts to open up relations with the country.
BAL Analysis: President Trump signaled during his campaign that he would take a harder line on Cuba than Obama did. While he announced changes that will take some forms of travel and business transactions off the table, he did not reverse all Obama-era changes. The restrictions Trump did order will not take immediate effect, but will be implemented once the Department of the Treasury and Department of Commerce promulgate the relevant regulations.
U.S. Citizenship and Immigration Services has announced that in July it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s July Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their adjustment-of-status applications in July.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will also be required to use the Final Action Dates chart applicable to family-sponsored immigrants, which was also provided in the July Visa Bulletin.
Labor Secretary Alexander Acosta has announced plans to more aggressively address fraud and abuse in nonimmigrant visa programs, including plans to direct the agency to conduct more investigations and to make changes to the Labor Condition Application.
Acosta signaled his intentions in a statement last week, a little more than two months after U.S. Citizenship and Immigration Services announced plans to target certain H-1B employers for site visits. The calls for increased investigations reflect President Donald Trump’s overall efforts to crack down on visa program abuses that he says undercut American workers. Acosta said the Labor Department will:
BAL Analysis: The Labor Department’s stated intentions to increase investigations of visa-related abuse is consistent with the Trump administration’s stance toward the U.S.’s visa programs, including the H-1B program. Employers should be prepared for an increase in site visits and should be sure to take steps to remain in compliance with visa program rules and regulations, including those enforced by the Labor Department’s Wage and Hour Division. Those with questions about remaining in compliance should contact BAL.
The U.S. Court of Appeals for the 9th Circuit ruled Monday to uphold a lower court’s ruling halting the implementation of President Donald Trump’s revised Executive Order to ban nationals of six Muslim-majority countries from entering the U.S. The ruling does little to change the current status of the Executive Order or to impact the final legal resolution. The 4th Circuit reached the same conclusion, albeit by different legal reasoning, in a May 25 ruling, and the administration appealed that decision to the Supreme Court on June 2.
The 9th Circuit decision nonetheless represents another setback for the Trump administration, which has issued two Executive Orders on travel that have repeatedly been blocked in court. While the 4th Circuit focused largely on the constitutional question of whether the order discriminates against Muslims, the Ninth Circuit’s decision focused largely on statutory law.
“The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public,” the court said. “But immigration, even for the President, is not a one-person show.” The court added that the government failed to present sufficient evidence that continuing to allow entry to nationals of the countries listed in the Executive Order would be “detrimental to the interests of the United States” and that the order runs afoul of a provision of the INA that prohibits nationality-based discrimination.
The March 6 Order would have prevented nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the U.S. for a 90-day period except in cases where an exemption or waiver applied. It was signed after a broader Executive Order, issued in late January, also stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial Executive Order.
BAL Analysis: Foreign nationals who would have been affected by the Executive Order may continue traveling to and from the U.S. as they could before the order was signed. The Supreme Court has been asked to review the 4th Circuit’s ruling, however, and could reinstate the order if it takes the case. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.
Priority cutoff dates for China EB-3 will retrogress to Jan. 1, 2012 according to the State Department’s July Visa Bulletin. Priority dates for India and the Philippines EB-3 categories will advance significantly, and EB-2 China and India will advance slightly in July.
Key movements in priority cutoff dates:
Additional notes: All EB-1 and EB-2 categories other than for China and India will remain current. It is likely that the retrogression for certain categories is being undertaken to control the number of visas issued between now and the end of the fiscal year on Sept. 30, as the number of available immigrant visas runs out. The number of immigrant visas will increase again under the 2018 fiscal year’s annual limits.
The State Department also released its Dates for Filing chart for July 2017. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing chart does not take effect unless USCIS confirms it via a web posting in the next week or so. BAL will update clients once the State Department confirms whether the Dates for Filing chart can be used in July.